Pluto and Constitutional Theory

Mark Graber

The New York Times reports that Pluto has been reclassified as one of three dwarf planets in the solar system, ending a controversy among astronomers over that sphere's status. Pluto was not reclassified, as I understand the Times story, because scientists discovered some fact about Pluto that was inconsistent with existing definitions of "planet." Rather, discoveries over the past generation have raised problems with existing definitions of "planet," requiring astronomers to adjust general understandings of what constitutes a planet before determining whether Pluto should be considered a planet.

The reclassification of the solar system and Pluto raise some questions about any variation of original meaning, whether we focus on specific expectations or general principles. Imagine that astronomers had discovered that, contrary to previous knowledge, Pluto did not actually revolve around the sun. In which case, Pluto could have been reclassified consistent with the original meaning of "planet." That the persons responsible for the original meaning of planet (or the most recent authoritative definition) thought Pluto met the conditions for being a planet is of no relevance to whether Pluto is a planet, if new evidence reveals that Pluto does not meet the general conditions for being a planet. Similarly, whether the persons responsible for the Fourteenth Amendment thought the equal protection clause protects abortion rights is of no relevance to whether the Fourteenth Amendment protects abortion rights if, on reflection, we come to believe that abortion rights are consistent with the general conditions for being an equal protection rights or, more accurately, the general principles underlying equal protection. This, I think, is the attraction of the new improved originalism.

The problem, in the case of Pluto, is that what astronomers discovered was that the existing principles of astronomy did not adequately describe astronomic phenomenon. Their discoveries meant that they could determine whether Pluto was a planet only by adjusting the broader principles determining what constituted a planet. The same phenomenon is likely to occur in constitutional societies. Constitutional developments do not simply create conditions under which practices originally classified as constitutional must be reclassified as unconstitutional (and vice versa), new conditions also challenge the capacity of existing constitutional principles to provide adequate criteria for classifying practices as constitutional or unconstitutional. For example, constitutional principles that insist we protect speech but not property do not resolve issues of campaign finance, where the question is whether the regulation is of speech or property. Unless we decide the framers were committed to such abstractions as equality, liberty or human dignity, abstractions that might justify any policy, we are likely to discover that principles the framers in 1789 or 1868 thought would be sufficient to classify practices as unconstitutional or constitutional no longer do so, that as was the case with Pluto, when determining whether abortion is an equal protection right, we will have to adjust general principles as well as specific applications.

Let me be clear on one point. My argument is not that the proponents of abortion cannot rely on the original meaning of the Fourteenth Amendment. My claim is that no one can because the original meaning of the Fourteenth Amendment, understood even in terms of general principles, cannot fully resolve modern problems. Constitutional theory, Pluto suggests, needs a theory of political development which cannot simply be a theory that relies on improved understandings of the general principles underlying constitutional norms.
Posted 10:41 AM by Mark Graber [link]